Transparency and Code Compliance: Building Codes, Fair Use, and Copyright

Written by Brennan Paterson, Lex Tecnica Law Clerk

©️ American Society of Mechanical Engineers

Local government, whether at the state, county, or municipal level, has long had an important role in assuring public safety by enforcing building codes and standards.  Before the creation and widespread adoption of such codes, thousands of Americans were killed every year due to faulty building designs, unsafe machinery, exploding boilers, and the like. 

In the early part of the 20^th century, however, a group of engineers came together to form the American Society of Mechanical Engineers (ASME) and published the first safety code for boilers, the ASME Boiler and Pressure Vessel Code. Other safety codes followed, establishing standards for building construction, electrical safety, elevator design, fire sprinkler systems, and much more.  As local governments adopted these standards, the number people injured or killed in accidents began to drop dramatically.  Today, America is one of the safest countries on Earth in terms of injury risk from building or machinery failures, and this is because of the enforcement of these codes.

For many years, it has been the habit of many local governments to adopt codes by reference in their official regulations as a matter of clarity and efficiency. That is, governments point to a code and say “this is what we say you must do”, but do not publish the text of the code itself. This is because these codes are copyrighted by the bodies that publish them, and those bodies have historically forbidden such dissemination.  As a result, citizens are often prevented from actually reading the rules they’re supposed to abide by unless they pay for their own copies of the adopted codes, each volume typically costing hundreds of dollars. 

A recent decision from the U.S. Court of Appeals for the Third Circuit, Am. Soc’y for Testing & Materials v. UpCodes, Inc., No. 24-2965 (3d Cir. Apr. 7, 2026), has directly addressed this issue, making an important development in the intersection between intellectual property rights and the public’s right to know what rules they’re supposed to follow.  In this case, the Third Circuit has held that reproducing building codes and technical standards that have been incorporated into law can constitute fair use. In doing so, the Court reinforces the principle that public must be able to access the laws that govern them.

The case arose from a dispute between the American Society for Testing and Materials (ASTM), a standards-developing organization, and UpCodes, a company that publishes building codes online. ASTM argued that despite the incorporation of its codes into statutes and regulations, it retained copyright and could control how those materials were accessed and distributed. UpCodes countered that making such standards publicly available served the lawful purpose of informing citizens of the rules they are required to comply with.  That is, UpCodes claimed that they were engaged in “fair use”, which is the doctrine that copyrighted material can sometimes be used without the owner’s permission so long as that use meets certain criteria.

©️ American Society for Testing and Materials

The Court applied a four-factor fair-use test from the “Limitations on exclusive rights: Fair use” section of the Copyright Act, 17 U.S.C. § 107, to analyze the issue.  The factors are 1, the purpose an character of the use, including whether such us is of a commercial nature or is for nonprofit educational purposes; 2, the nature of the copyrighted work; 3, the amount and substantiality of the portion used in relation to the copyrighted work as a whole;  and 4, the effect of the use upon the potential market for or value of the copyrighted work.

On the first factor the court found that UpCodes’ actions were “transformative.” While ASTM develops codes to guide industry, UpCodes’ purpose was to provide public access to those codes as adopted law. This difference in function, as well as the fact that UpCodes did not charge users for access to the published codes, decided this factor in UpCodes’ favor.

The second factor also favored the fair use argument. The court emphasized that the codes copyrighted by ASTM were, once incorporated by reference into law, moved to the periphery of copyright’s core protection, especially since the codes are factual works as opposed to creative or fictional material.

In considering the third factor, the Court recognized that it would be impossible to inform the public about legal requirements without reproducing the full text of the applicable standards. Partial excerpts would be insufficient and potentially misleading. Accordingly, copying entire codes was justified by the purpose of the use.

The fourth factor – the effect on the market for the original work – did not weigh heavily enough against fair use to prevail. Not only did ASTM not provide evidence that the market for their codes was harmed by being made available online, but the Court determined that even if such evidence was provided it must be weighed against the significant public benefit of granting access to regulations.

In deciding for UpCodes, the Court recognized that when privately developed codes are given the force of law, a different set of considerations comes into play than simply ownership of the material. Instead, transparency of law, fairness of access, and democratic accountability must be foremost.

"Boiler Explosion" (n.d.). Wikimedia Commons

This issue is not merely academic but has real-world implications for how regulations are implemented and enforced. During my tenure as Chief Elevator and Boiler Inspector for the State of Nevada, I encountered this issue firsthand. Nevada, like many jurisdictions, adopts a wide range of technical standards by reference in the Nevada Administrative Code. These incorporated standards carry the full weight of law and compliance with their requirements is not optional.  Unfortunately, even though one of my duties was to enforce the provisions of these codes, I could not simply provide copies of the adopted safety codes to the public. Rather, the public had to purchase their own copies of the codes in order to see what they were being told to conform with.

This situation created challenges in enforcement of the law, but more importantly it raised a fundamental concern about fairness.  The legitimacy of any regulatory system depends, in part, on the ability of those subject to it to understand their obligations. When access to the law is restricted, it undermines that legitimacy. By affirming that fair use permits the dissemination of legally binding safety codes, this decision advances both the rule of law and the practical realities of regulatory compliance. More importantly, it aligns legal doctrine with a simple but essential principle: if the government requires people to follow a rule, those people must be able to read it.

This article has been reviewed and approved for legal accuracy by Ashlyn Hauber, Esq. It is intended for informational purposes only and does not constitute legal advice.